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Lyles v. City of Charlotte and Motorola Inc.11/8/1996
The question as to whether the creation of the DIRM was ultra vires for the City was not raised by the parties and we do not address it. The Dissent raises the question and in order to prevent holding that the DIRM is ultra vires determines it is a local government risk pool. The General Assembly has provided that sovereign immunity may be waived by participating in a local government risk pool, and has provided for certain requirements to establish such an organization. We believe it would be a mistake to hold that a local government may ignore these statutory requirements and create a risk pool to its own liking. The City did not intend to join a local government risk pool, and we do not believe we should hold it has done so by accident.
We hold that the City of Charlotte has not joined a local government risk pool.
The plaintiff also argues that the City, by the purchase of the General Reinsurance policy, has waived its sovereign immunity for the amount of each claim in excess of $250,000 but for not more than $1,250,000. This policy covers claims for bodily injury of City employees by accident and excludes coverage for "bodily injury intentionally caused or aggravated by or at the direction of the Insured."
The plaintiff brought this action as a Woodson claim, alleging that the defendant knew or should have known that its action in instructing its officers how to use the radios was substantially certain to cause the death or serious injury of an officer. Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). We presume this was done so that the workers' compensation claim would not be plaintiff's exclusive remedy. We do not pass on the question of whether the papers filed in this case show that the evidence would support a Woodson claim. The parties have not raised that question, and on this appeal, we shall assume the plaintiff has a Woodson claim.
The defendant says that by bringing an action based on the allegation that the City knew its action was substantially certain to cause death or serious injury , the plaintiff has alleged a claim that is not covered by the General Reinsurance policy. It says the policy covers accidents and excludes injuries intentionally caused. The plaintiff says the death of her husband was accidental and was not caused intentionally.
In this argument, defendant City must prevail. In N.C. Farm Bureau Mut. Ins. Co. v. Stox, 330 N.C. 697, 709, 412 S.E.2d 318, 325 (1992), we held that an intentional act is an accident within the meaning of a homeowner's insurance policy if the injury incurred was not intended or substantially certain to be the result of the intentional act. We are bound by Stox to hold that when the plaintiff alleged the City's action was substantially certain to cause an injury, she alleged the occurrence was not accidental. This allegation removed the claim from coverage under the policy for purposes of this action.
In Woodson, we held that facts which may support a civil action because they show a substantial certainty of injury may also support a workers' compensation claim on the theory that the claim is based on an accident. We said that the language of the Workers' Compensation Act required this result. Woodson v. Rowland, 329 N.C. 330, 348, 407 S.E.2d 222, 233. The plaintiff in this case is not making a workers' compensation claim, and the provisions of the Workers' Compensation Act are not available to her in determining whether her claim is based on an accident.
For the reasons stated in this opinion, we reverse the Court of Appeals.
REVERSED AND REMANDED.
Justice FRYE Dissenting.
I disagree with the majority's holding in th
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